JOAN ANDERSON and JUDY LYNN ANDERSON, minors, by their
mother and next friend, Mrs. Bessie Anderson; JUANITA
BENNETT, MARY LEE BENNETT and ARCHIE LEE BENNETT, minors, by
their father and next friend, Mr. James Bennett; et al.,

THE DISTRICT COURT ABUSED ITS DISCRETION
IN APPROVING MCSD'S PLAN TO LOCATE THE NEW
HIGH SCHOOL IN RIDGELAND 1

A. Locating The High School In Ridgeland
Perpetuates An Unfair Travel Burden on
Black Flora Students 3

B. The Alternative Site At Route 463
Is A Practicable Location For A New
High School, And Is Better Suited
For Reducing The Travel Burden That
The Present System Imposes On Flora
Students 7

C. The District Court's Approval Of MCSD's
Plan Would Be An Abuse Of Discretion
Even Under Rufo Standards 17

CONCLUSION 19

STATEMENT OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES: PAGE

Arvizu v. Waco Indep. Sch. Dist., 495 F.2d 499

(5th Cir. 1974) 5

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979) 12

Diaz v. San Jose Unified Sch. Dist., 861 F.2d 591

(9th Cir. 1988) 5

Green v. County Sch. Bd., 391 U.S. 430 (1968) 17

Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090

(11th Cir. 1992) 12-13

Lee v. United States, 914 F. Supp. 489

(N.D. Ala. 1996) 8

-i-

CASES (continued): PAGE

Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 1985) 13

Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367 (1992) 18

Singleton v. Jackson Mun. Sep. Sch. Dist.,

419 F.2d 1211 (5th Cir. 1969),

cert. denied, 396 U.S. 1032 (1970) 5

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971). 9, 13, 17

Tasby v. Estes, 517 F.2d 92 (5th Cir.), cert.

denied, 423 U.S. 939 (1975) 11

United States v. Unified Sch. Dist. No. 500,

974 F. Supp. 1367 (D. Kan. 1997) 7

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) 13, 17

-ii-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60846

JOAN ANDERSON and JUDY LYNN ANDERSON, minors, by their
mother and next friend, Mrs. Bessie Anderson; JUANITA
BENNETT, MARY LEE BENNETT and ARCHIE LEE BENNETT, minors, by
their father and next friend, Mr. James Bennett; et al.,

The Madison County School District (MCSD) has raised
numerous points in response to the United States' brief. MCSD,
however, fails to overcome the United States' primary contention
that the district court abused its discretion by approving the
aspect of MCSD's plan for new school construction that locates
the new high school in Ridgeland and thus perpetuates an undue
transportation burden on black students traveling from Flora.
MCSD also fails to overcome evidence showing that in seeking to
reduce overcrowding in schools, MCSD officials failed to consider
its obligations under prior consent orders and the Constitution,
thus contributing to the plan's failure to further desegregation.

The district court approved MCSD's plan to locate the new
high school in Ridgeland because it determined that the plan
"does not * * * negatively affect[] desegregation in the [school]
district," and there was "[no] reasonable prospect for further
desegregation" (Order at 126).(1) The district court, however,
abused its discretion in approving the plan on these bases. For
reasons fully shown in our opening brief, MCSD's plan effectively
perpetuates an undue travel burden on the predominant number of
black students commuting from Flora. Furthermore, there is at
least one feasible alternative site proposed by the United States
and private plaintiffs that would substantially reduce
overcrowding for high school students in Zones II and III, as
well as make more equitable the unfair travel burden endured by
black students commuting from Flora, but school officials failed
to give this, or any other, location any meaningful
consideration.

A. Locating The High School In Ridgeland Perpetuates An UnfairTravel Burden On Black Flora Students

MCSD makes numerous arguments (MCSD Br. 27-33) to support
its contention that the transportation burden on black students
in Flora is not inequitable. These arguments are wholly without
merit and cannot justify approval of a plan that does nothing to
diminish the inequitable travel burden.

1. The district court found that students traveling to
Madison Central High School from the predominantly black Flora
community endure as much as a 2-1/2 hour bus ride each way (Order
at 84). Students traveling from Flora are picked up as early as
5:50 a.m. for an 8:15 a.m. arrival at Madison Central High School
(Plt. Exh. 136; Tr. 213-215 (Bailey)). By comparison, students
from Ridgeland travel by bus at most 50 minutes to Madison
Central High School (Order at 83), with most students picked up
as early as 7:30 a.m. for an 8:15 a.m. arrival at the high school
(Plt. Exh. 135; Tr. 210-213 (Bailey)). When MCSD officials
developed the plan for locating the new high school in Ridgeland,
they were unaware that Flora students endured such a lengthy bus
ride to and from school (Tr. 208-210, 214 (Bailey); Tr. 761, 765-766 (Miller); Plt Exh. 136). MCSD's Director of Facilities James
Reeves testified that he had not evaluated the school district's
bus routes and was unaware of the transportation burden on black
and white students prior to selecting a site for the new high
school (Tr. 881). MCSD consultant Gary Bailey testified that he
had not made any detailed determination of the relative
transportation burdens experienced by black and white students,
and that he did not know how many black students commuted to
Madison Central High School from Flora (Tr. 56, 59).

MCSD's failure to develop a plan that addresses the
inequitable travel burden is symptomatic of the failure of school
officials to take into consideration their desegregation
obligations in formulating the plan for new school construction.
School officials testified that they had either failed to review
the school district's desegregation orders prior to developing
the plan for new school construction (Tr. 55 (Bailey); Tr. 349,
440 (Bridge); Tr. 740-741 (Miller)), or failed to assess the
effect that the bond issue would have on desegregation (Tr. 507
(Jones)).

2. MCSD argues (MCSD Br. 28) that the travel burden imposed
on black Flora students is not linked to its proposal to locate
the new high school in Ridgeland, but rather the result of a 1990
consent order that closed the predominantly black high school in
Flora, consolidated the Flora and Madison-Ridgeland attendance
zones, and transferred Flora high school students to Madison
Central High School (R. 2919). The fact that the 1990 consent
order required that Flora students be transferred to Madison
Central High School has little bearing in assessing MCSD's
current proposal for locating the new high school in Ridgeland.
When the parties agreed to close the high school in Flora and
transfer Flora students to the newly constructed Madison Central
High School, Madison Central was the most centrally located
between the two communities. In 1990, the parties agreed to, and
the district court approved, the closure of predominantly black
Flora High School. The issue that the parties now face is where
to locate a new school that will further desegregation not only
from the standpoint of student enrollment, but that will also
facilitate a reduction in the commuting time for Flora students
whose transportation burden is grossly inequitable compared to
that of other students in the county. MCSD is obligated to
transfer students on a "nondiscriminatory basis." Singleton v.
Jackson Mun. Sep. Sch. Dist., 419 F.2d 1211, 1218 (5th Cir.
1969), cert. denied, 396 U.S. 1032 (1970), and to otherwise
"ensure that the burdens of desegregation are distributed equally
and without discrimination." Diaz v. San Jose Unified Sch.
Dist., 861 F.2d 591, 596 (9th Cir. 1988); Arvizu v. Waco Indep.
Sch. Dist., 495 F.2d 499, 508 (5th Cir. 1974). Indeed, locating
the new high school in Ridgeland -- only 2-1/2 miles from the
existing Madison Central High School -- does not equitably
distribute the burden of desegregation when the predominant
number of black Flora students will continue to travel a long
distance to attend high school at Madison Central.

3. MCSD argues (Br. 29-31) that the plan should be approved
in any event because locating the new high school in Ridgeland
does not adversely affect the travel burden on black students in
Flora because they will continue to attend Madison Central High
School. MCSD also argues (Br. 29-30) that the Ridgeland location
will reduce the travel burden for a significant number of black
students who live in Ridgeland. MCSD's argument is inherently
flawed, however, because it fails to recognize that locating a
new high school in Ridgeland does have an adverse affect on
students commuting from the predominantly black Flora community
because it perpetuates an inequitable transportation burden on
these students. Flora high school students experience the
longest commute as compared to other high school students at
Madison Central. Locating the new high school in Ridgeland will
perpetuate this undue burden, and would reduce the already
nominal commute for students in the predominantly white Ridgeland
community who, under the current commuting arrangement, are not
burdened at all.

The district court found that locating the new high school
at Route 463 would reduce the commute for Flora students by 5.4
miles, or 13 minutes by bus (Order at 105). Based on this
finding, MCSD argues (MCSD Br. 31) that the alternative site at
Route 463 proposed by the United States and private plaintiffs
would not significantly reduce the travel burden on Flora
students. However, as MCSD admits (MCSD Br. 31), the commuting
time for the Flora students can be reduced by adding more buses
to the routes serving Flora. As the United States pointed out in
its opening brief (U.S. Br. 39), the way to significantly reduce
the travel burden on black Flora students is not to locate the
new high school even farther from these students who are already
unduly burdened. Rather, it would be to locate a school closer
to these students suffering the burden and also increase the
number of buses transporting students to the new school.

The 2000 consent decree (dated April 24, 2000) agreed to by
the parties requires MCSD to, consistent with the district
court's order, reduce the commuting times for Flora high school
students to 45 minutes each way and provide an explanation to the
district court for students whose commute exceeds 45 minutes.
This development in the litigation does not undermine the United
States' argument that the Route 463 site is the most suitable
location for the new high school. There is nothing in the
district court record showing that MCSD has put into place
sufficient school buses and bus routes that will ensure this
significant reduction in commuting times for Flora students. In
any event, the best way to ensure that Flora students are spared
any further possibility of such a lengthy commute would be to
locate the new high school at the Route 463 site, closer to the
Flora community.

B. The Alternative Site At Route 463 Is A Practicable
Location For A New High School, And Is Better Suited
For Reducing The Travel Burden That The Present SystemImposes On Flora Students

1. MCSD argues (MCSD Br. 33-40) that the alternative site
at Route 463 proposed by the United States and private plaintiffs
is not a feasible location for the new high school. MCSD argues
(MCSD Br. 34-35) that the Route 463 location is "remote" and "has
inadequate infrastructure and services." In making these
determinations, however, school officials failed to fully analyze
the feasibility of locating the high school at the Route 463
site, as no meaningful assessment was ever completed by MCSD
officials responsible for developing the school district's plan
for any alternative site for the new high school. The United
States' expert witness, Kelley Carey, prepared a comprehensive
report on the feasibility of the Route 463 site (U.S. Rec. Exc.
Tab 5). Expert Carey is a demographer and school facilities
planner with 25 years of experience in desegregation matters, and
his work has been recognized in a published federal district
court opinion (see Lee v. Macon County Bd. of Educ., 914 F. Supp.
489, 490-491 (N.D. Ala. 1996)). After analyzing the feasibility
of the Route 463, expert Carey determined that it was a suitable
location for the new high school (U.S. Rec. Exc. Tab 5, pp. 18-21).

Expert witness Carey explained (U.S. Rec. Exc. Tab 5 at pp.
20-21) that locating the new high school at Route 463 would
result in many fewer black students living more than ten miles
from their high school, and fewer high school students overall
traveling over ten miles to high school. Based on student
enrollment figures from the 1998-1999 school year, 1,865 students
attended Madison Central, of whom 1,338 (72%) were white and 500
(27%) were black. Using concentric rings to measure the travel
distances of students, Carey determined that by locating the new
high school in Ridgeland, 20% of high school students living
within five miles of their school would be black (343 black and
1,345 nonblack); 28% of students living within 5-10 miles of
their school would be black (109 black and 275 nonblack); and 74%
of students living over ten miles of their school would be black
(153 black and 54 nonblack). By comparison, Carey found that by
locating the new high school at Route 463, 22% of students living
within five miles of their high school would be black (286 black
and 1,296 nonblack); 32% of students living within five to ten
miles of their high school would be black (307 black and 638
nonblack), and 32% of students living more than ten miles from
their high school would be black (12 black and 26 nonblack) (U.S.
Rec. Exc. Tab 5, p. 20). Carey observed that while more students
would live within five miles of the proposed high school in
Ridgeland, that location "disregard[s] the largely rural nature
of the school district territory," and results in a
disproportionate number of black students traveling more than ten
miles to high school (U.S. Rec. Exc. Tab 5, p. 21). In fact,
Carey stated that many of these black students "live on the other
side of Flora, away from Madison Central [High] School, and
travel over 20 miles to school each way" (U.S. Rec. Exc. Tab 5,
p. 21). Thus, the Route 463 site is not remote with respect to
reducing the travel burden on the predominant number of black
students commuting from Flora.

Indeed, the history of this case substantiates the Supreme
Court's observation in Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1, 20 (1971), that "[p]eople gravitate toward
school facilities, just as schools are located in response to the
needs of people." Following the closure of Flora High School,
and the construction of the new Madison Central High School in
1991, there was a significant increase in residential growth in
the Madison area adjacent to Ridgeland (Order at 104). The
district court stated that "when Madison Central was constructed,
the travel burden was equitably distributed" between students
traveling from Madison, Flora, and Ridgeland, "and that it has
now become inequitable only as a result of the post-construction
population explosion in the southern part of the county" (Order
at 104 (emphasis omitted)).

2. MCSD insists (MCSD Br. 35) that the Route 463 site
cannot accommodate the necessary infrastructure and public
services necessary for a high school. Expert witness Cary
researched the site thoroughly and testified that sewer services
could be provided at the site with "on-site waste lagoons," and
that two county schools already get sewer service in that fashion
(Tr. 1007). Carey also determined that the Route 463 site has
access to water through the Bear Creek Water Authority (Tr.
1007). Carey testified that police and fire service is fully
accessible by virtue of Route 463, which is a main highway
through the county (Tr. 1008-1009).

3. MCSD argues (Br. 36-39) that the substantial growth in
Madison and Ridgeland alone warrants locating the high school in
Ridgeland. However, substantial growth in Ridgeland cannot be
the sole reason for placing the new high school in that
community. The new high school must be located at a site that
will further desegregation by reducing the travel burden on the
black Flora students. MCSD argues (MCSD Br. 39) that Ridgeland
will become increasingly populated by black residents in the
future, and that presumably a new Ridgeland High School would
eventually benefit a large number of black students. MCSD's
speculative assessment is based on its unsubstantiated
supposition that black residents will disproportionately occupy
apartment complexes that are planned for construction in
Ridgeland. The district court, however, made no findings on the
future racial makeup of the Ridgeland community, and the United
States and private plaintiffs dispute MCSD's assertion that there
will be an increasing number of black families moving into
Ridgeland (Order at 99 & n.48).

4. MCSD argues further (MCSD Br. 39, 49-51) that the Route
463 site is "inferior" to MCSD's preferred site at Ridgeland.
There is, however, ample evidence that the Route 463 site is an
economically feasible site for locating the new high school
(supra, p. 10; see also U.S. Br. 20-21, 37-41). MCSD, however,
misses the point of this issue on appeal. As a school district
under a desegregation order, MCSD is obligated to consider
alternative sites that will further desegregation. Tasby v.
Estes, 517 F.2d 92 (5th Cir.), cert. denied, 423 U.S. 939 (1975).
MCSD failed to satisfy that obligation because school officials
gave no meaningful consideration to any high school site other
than Ridgeland. For instance, every cost assessment of new
school construction prepared by MCSD assessed only the cost of
building a new high school in Ridgeland (see Def. Exhs. 8, 9, 11,
12, 19, 20, 22, 23, 27, 29, 31, 33, 36). MCSD facilities
director, James Reeves, testified that when he was hired by MCSD
in 1996, he was assigned the responsibility of preparing a report
on the bond issue that was filed with the State of Mississippi
(Tr. 818; Plt. Ex. 41). The report, finalized and filed in
December 1996, reflected that the bond issue proposed the
construction of a new high school in the Ridgeland community (Tr.
818-820; Plt Exh. 41). Morevover, when MCSD consultant Bailey
was retained to develop the plan for new school construction, the
school district's intent to locate the new high school in
Ridgeland was a foregone conclusion. The contract that MCSD
entered into in November 1997 with Gary Bailey to retain his
services states that Bailey would be responsible for developing a
plan for a "New Ridgeland High School" (Def. Exh. 36; see also
Tr. 1584-1585).

5. MCSD's claim (MCSD Br. 40-41) that its plan was
developed "with desegregation in mind" is baseless, and its claim
(MCSD Br. 40) that school officials "had absolutely no intention
of re-establishing a dual school system" is irrelevant to the
applicable standard for reviewing the plan. Discriminatory
intent is not the standard for assessing the appropriateness of
MCSD's plan for new school construction. Dayton Bd. of Educ. v.
Brinkman, 443 U.S. 526, 538 (1979). Until unitary status is
achieved, MCSD must avoid any action that has the "effect of
perpetuating or reestablishing a dual school system" (Harris v.
Crenshaw County Bd. of Educ., 968 F.2d 1090, 1094 (11th Cir.
1992)), and must take "affirmative steps to eliminate the
continuing effects" of the dual system. Wygant v. Jackson Bd. of
Educ., 476 U.S. 267, 291 (1986). "[F]uture school construction
* * * [should] not serve to perpetuate or re-establish the dual
system." Swann, 402 U.S. at 21. "[W]hen the school board fails
to consider or include the objective of desegregation in such
decisions as whether to construct new facilities," that
constitutional duty is violated. Pitts v. Freeman, 755 F.2d
1423, 1427 (11th Cir. 1985).

While MCSD argues (MCSD Br. 40-41) that school officials
recognized their constitutional duty, the evidence wholly
supports the district court's conclusion that school officials
were unaware of their desegregation obligations when formulating
the plan for new school construction generally, and in particular
as it relates to selecting a site for the new high school. As
the United States showed in its opening brief (U.S. Br. 10, 14,
15, 30), and as found by the district court, MCSD officials
failed to review the district court's desegregation orders, and
had no understanding of the school district's desegregation
obligations (see Order at 125 (school officials "have never even
read the desegregation orders and judgments and none seems to
have any comprehension of their import")). Moreover, MCSD
officials did not prepare a pupil locator map -- a fundamental
practice in desegregation planning -- prior to selecting the
Ridgeland site (Tr. 346 (Bridge)). Thus, in selecting the
Ridgeland location, school officials failed to engage in proper
desegregation planning that would reduce the transportation
burden on Flora students.

6. MCSD argues (Br. 45-47) that its enrollment projections
were reasonable because they were based on a five-year average
enrollment change at each of the schools. MCSD's expert,
however, overprojected future enrollment. These significant
overprojections will result in greater resources dedicated to the
Ridgeland area, and fewer resources for Flora students and others
assigned to attend high school at Madison Central.

MCSD states (MCSD Br. 46-47) that its consultant Gary
Bailey "used his best judgment and his experience based on actual
historical enrollment data to make enrollment projections."
Bailey estimated that the student enrollment at Madison Central
would increase by 10.4% annually. Applying this yearly average
increase to the 1998-1999 student enrollment figure of 1,859,
yields a student enrollment of 3,047 by the 2003 school year.

United States expert Carey, however, prepared five-year
projections of enrollment by school and by grade. Expert witness
Carey's projection of enrollments consisted of "examining actual
data on live birth trends, comparing those numbers for each year
to the number showing up in that cohort group at the appropriate
year after their birth" (U.S. Rec. Exc. Tab 5, p. 5). Carey's
report explained that

[a] cohort group is a numerical group either born in a year
or constituting a grade group. School enrollment
projections use the concept of cohort groups above the first
grade. In that context a cohort numerical group moves up
from grade to grade[,] from year to year.

U.S. Rec. Exc. Tab 5, p. 5. Carey reports that the use of cohort
groups "serves several enrollment projection needs," such as the
following:

1. It tracks the impact upon enrollments from growth or
decline in births within the school district * * *.

3. It overcomes the problem of an inconsistent relationship
between such items as building permits and school
enrollments * * *.

4. Cohort survival factors tell us who actually has arrived
into the school system, what grades were affected, and what
rates of growth or decline in enrollment resulted as
reliable indicators of future changes in enrollment at each
grade * * *.

5. Historical and documented cohort survival factors from
grade to grade are an invaluable indicator of how
enrollments are growing or declining, as they also represent
a combined impact of in-migration and out-migration at each
school in the system * * *.

U.S. Rec. Exc. Tab. 5, pp. 5-6.

Applying the cohort survival analysis to live birth figures
for the Madison and Ridgeland areas, United States expert witness
Carey "project[ed] 2,473 students for the area served by the
present Madison Central High School for year 2003, increasing
from 1,859 in 1998-1999" (U.S. Rec. Exc. Tab 5, p. 15). By
comparison, MCSD consultant Bailey's projections for future
student enrollment exceeded Carey's projections by about 574
students. Carey reported:

current and projected demographics indicate[] that of the
614 [student] increase in high school enrollment over the
next five years at Madison Central High, only 212 or 34.6%
of the growth can be attributed to the proposed Ridgeland
High School zone. Most of the growth in high school
enrollment, that is now in the pipeline and documented, is
due to enrollment growth in Madison and to the north and
northwest of Madison. The growth expected north of
Ridgeland is about double the growth indicated to occur
within Ridgeland.

U.S. Rec. Exc. Tab 5, p. 15. Based on expert witness Carey's
estimation that future growth within the next five years will
occur principally north and northwest of Madison and Ridgeland,
he concluded that student demographics would dictate that
locating a new high school in Ridgeland would not be prudent and
would result in an "imbalanced allocation of facilities capacity"
(U.S. Rec. Exc. Tab 5, pp. 16-18).

7. Moreover, contrary to MCSD's claim (MCSD Br. 49-51), the
Ridgeland site is not the best location for the new high school
because it would hinder the county's ability to meet demographic
shifts. Expert witness Carey studied the student demographic
patterns of the area, and found that "[t]he existing Madison
Central High School guards the entrance to th[e] [southern]
funnel [area of the county] from the rest of the school district"
(U.S. Rec. Exc. Tab 5, p. 17). Locating the new high school in
Ridgeland would make it "imprudent to plan for a future zone that
bypasses the existing school in order to justify the location of
a new one," and would complicate the county's ability to meet
future demands (U.S. Rec. Exc. Tab 5, p. 17).

With the residential growth continuing to the north of
Ridgeland, there will be need for classrooms at Madison
Central High. Meanwhile, a surplus of space would slowly
develop at Ridgeland High School. Because all of the area
to the south of the proposed Ridgeland High School zone is
in the City of Jackson, the only way to use that excess
space would be to extend the Ridgeland zone north, wrapping
it around Madison Central High School's zone. Otherwise,
the excess space is wasted, and there develops a premature
need for an additional high school.

U.S. Rec. Exc. Tab 5 at p. 17.

C. The District Court's Approval Of MCSD's Plan Would Be AnAbuse Of Discretion Even Under Rufo Standards

1. MCSD argues (MCSD Br. 52-56) that the district court was
correct in approving its plan despite the fact that it does
nothing more than avoid a negative effect on desegregation. The
standard articulated by the district court for assessing the
appropriateness of MCSD's plan was incorrect because MCSD has a
"constitutional duty to take affirmative steps" that will further
satisfy the school district's desegregation obligations. Wygant,
476 U.S. at 291 (emphasis added), citing Swann, 402 U.S. at 15;
Green v. County Sch. Bd., 391 U.S. 430, 437 (1968). Throughout
its opinion, the district court is critical of MCSD's plan and
questions the prudence of the school district's decisions. With
respect to locating the new high school in Ridgeland, the
district court stated that "[c]onstructing a high school half the
size of the existing Madison Central which leaves little actual
growing room at Madison Central does not seem particularly
prudent" (Order at 125). The district court found that school
officials were "ambivalen[t] and ignoran[t]" with respect to
formulating a plan that will further desegregate the school
district (Order at 126). These findings, coupled with the fact
that MCSD's plan does nothing to alleviate the undue travel
burden on Flora students, warrant rejecting the plan.

2. In addition, there is no basis for MCSD's contention
(MCSD Br. 59) that its plan for locating the new high school in
Ridgeland satisfies the standard for modifying consent decrees
set out in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367
(1992). Under Rufo, the party seeking to modify a consent decree
must show that "changed factual conditions make compliance with
the decree substantially more onerous," or that a decree is
"unworkable because of unforseen obstacles." Id. at 384. MCSD
seeks to modify prior consent orders to permit construction of a
new high school to accommodate the increasing number of students
residing in Zones II and III of the county school district.
Indeed, the United States does not dispute that overcrowding in
the county warrants construction of a new high school (see Order
at 91). However, having thus established that student
overcrowding warrants modification of the consent decree, "the
district court [must] determine whether the proposed modification
is suitably tailored to the changed circumstance." Id. at 391.
In making this assessment, "three matters should be clear."
Ibid. "[A] modification must not create or perpetuate a
constitutional violation," or "rewrite a consent decree so that
it conforms to the constitutional floor," and the district court
should "defer to local government administrators * * * to resolve
the intricacies of implementing a decree modification." Id. at
391-392.

In this case, MCSD's proposed modification does not satisfy
Rufo. MCSD's proposal to locate the new high school at the
Ridgeland site will perpetuate an inequitable travel burden on
Flora students, and will do nothing to further desegregation
(despite the feasibility of an alternative site that would reduce
the travel burden on Flora students). Thus, even under the
standards articulated in Rufo, the district court's approval of
the modification was an abuse of discretion.

CONCLUSION

For the foregoing reasons, the district court's order
approving MCSD's plan to build a new high school in Ridgeland
should be reversed, and the case remanded to the district court
with instructions to require MCSD to develop a new plan for
locating the new county high school at a location that will
reduce the travel burden for the Flora students.

I hereby certify that this reply brief complies with the
type volume limitation set out in Fed. R. App. Pro.
32(a)(7)(B)(ii). The brief was prepared using WordPerfect 7.0,
and contains 4,844 words.

Lisa Wilson Edwards Attorney
Attorney

CERTIFICATE OF SERVICE

I hereby certify that on August 1, 2000, two copies of the
Reply Brief For The United States As Appellant and one disk
containing the Reply Brief's text were sent by first-class mail,
postage prepaid, to each of the following persons:

1. "Order at __" refers to pages in the district court's
Memorandum Opinion and Order (dated Sept. 21, 1999), that is Tab
2 of the United States' Record Excerpts. "U.S. Rec. Exc. Tab
___" refers to the tabbed items in the United States' Record
Excerpts filed with its opening brief in this appeal. "Tr. __"
refers to pages of the transcribed hearing in the district court
held from May 17 to May 25, 1999. "Plt. Exh. __" refers to the
United States' and private plaintiffs' numbered exhibits. "R.
___" refers to the numbered record documents listed in the
district court docket sheet that is Tab 1 of the United States'
Record Excerpts. "MCSD Br. ___" refers to pages in the brief
filed by appellee MCSD in this appeal. "U.S. Br. ___" refers to
pages in the opening brief filed by the United States in this
appeal.